税收遵从协议行政指导属性之证成

Certification of Administrative Guidance to the Tax Compliance Agreement's Nature

税收遵从协议作为一种新型执法方式被广为应用,具有一定的积极意义。学界对其性质、合法性等方面的认识,争议颇多。从对现有文本的观察来看,税企双方签订税收遵从协议并不会引起税收行政法律关系的变动,协议大部分内容只是对税收法律规范的重申与复写。税收遵从协议以合同为载体,实际上并不能被认定为行政合同,而只是行政指导的一种类型。同时,税收遵从协议以意思自治为原则,但必须遵循税法的基本规则,必须在税收法定主义的框架内运行,行政两造不能以协议方式变更法定的税收法律关系。

Tax compliance agreement is a new and important enforcement approach which is used in many fields recently. However,there are different points about its nature and legality. From the current text of tax compliance agreement, the act of contract between tax authorities and enterprises cannot change the legal relationship. In fact, most terms of tax compliance agreement are just a duplicate from tax laws. Although tax compliance agreement 's outward appearance is a contract, it cannot be treated as an administrative contract and just an administrative guidance. At the same time, although tax compliance agreement 's basic principle is autonomy of will, it also must be carried out within the framework of the statutory taxation principle. Tax authorities and enterprises cannot change the legal relationship by agreement.